Mealey's Elder Law

  • November 15, 2019

    California Panel:  No Arbitration In Nursing Home Wrongful Death Case

    RIVERSIDE, Calif. — Noting that it disagreed with both the trial court’s reasoning and the respondent’s argument on appeal, a California appellate panel in a Nov. 12 unpublished opinion nevertheless affirmed an order denying the petition of a nursing home licensor and owner to compel arbitration in a wrongful death case based on the doctrine of implied findings (Jose Duran Padilla, et al. v. Knolls West Post Acute, LLC, et al., No. E072025, Calif. App., 4th Dist., Div. 2, 2019 Cal. App. Unpub. LEXIS 7473).

  • November 14, 2019

    U.S. Supreme Court Won’t Review ADEA Protection For Applicants

    WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 7 denied a petition for a writ of certiorari filed by a job applicant who was denied an interview based on his excessive years of experience and argued that his age bias claim was erroneously rejected by a divided en banc Seventh Circuit U.S. Court of Appeals (Dale E. Kleber v. CareFusion Corporation, No. 18-1346, U.S. Sup.).

  • November 14, 2019

    Pennsylvania High Court Clarifies Scope Of Orphans’ Court Property Appeals

    HARRISBURG, Pa. — In an Oct. 31 holding in a dispute between heirs, the Pennsylvania Supreme Court held that an interest in real or personal property is appealable as of right under Pennsylvania Rule of Appellate Procedure 342(a)(6), Pa. R.A.P. 342(a)(6), and that failure to file an immediate appeal results in waiver of a later challenge (In re Estate of Sophia M. Krasinski, No. 40 WAP 2018, Pa. Sup., 2019 Pa. LEXIS 6119).

  • November 14, 2019

    Marketing Company, Owner Indicted For Scheme To Defraud Elderly Patients

    AUGUSTA, Ga. — A man and his marketing company were indicted in federal court in Georgia on Nov. 7 for engaging in a scheme in which they paid illegal kickbacks to workers who solicited elderly patients for medically unnecessary genetic testing that was then fraudulently billed to Medicare (United States v. Patrick Siado, et al., No. 19-cr-149, S.D. Ga.).

  • November 13, 2019

    HHS Secretary: No Protected Interest For Class Over Medicare Hospital Designation

    HARTFORD, Conn. — The secretary of Health and Human Services in an Oct. 31 post-trial brief tells a Connecticut federal court that a class of Medicare recipients have no protected property interest and no “state action” concerning the classification of their hospital services under Medicare rules (Christina Alexander, et al. v. Alex M. Azar II, No. 11-1703, D. Conn.).

  • November 13, 2019

    Class Complaint Alleges Age, Sex Discrimination In Facebook Financial Ads

    SAN FRANCISCO — A putative class action filed Oct. 31 in California federal court alleges that Facebook Inc. has facilitated and encouraged financial services providers to discriminate in violation of California’s Unruh Civil Rights Act by specifically targeting their advertisements to exclude women and older people from receiving them (Neuhtah Opiotennione v. Facebook Inc., No. 3:19-cv-07185, N.D. Calif.).

  • November 12, 2019

    Panel Vacates Ruling In Will Contest, Remands For Undue Influence Determination

    PHILADELPHIA — A lower court erred failing to qualify a nurse as an expert in caring for Alzheimer’s and dementia patients and in failing to find that a woman suffered from a weakened intellect in the period leading up to the execution of her will, a Pennsylvania Superior Court panel found Nov. 7, vacating a lower court’s ruling in a will contest and remanding for the court to determine whether the will proponents can establish the absence of undue influence (Estate of Stella Fabian, No. 2804 EDA 2018, Pa. Super, 2019 Pa. Super. LEXIS 1109).

  • November 12, 2019

    State Agency: Garnishments Are Included When Calculating Medicaid Liability

    WASHINGTON, D.C. — The Indiana Family and Social Services Administration (FSSA) tells the U.S. Supreme Court in a response brief filed Nov. 8 that it does not need to review a state appeals panel’s ruling that a Medicaid agency can include garnishments to a man’s income when calculating how much he is required to pay for nursing home services, explaining that the decision does not conflict with federal law (Lance Patterson v. Indiana Family and Social Services Administration, No. 19-181, U.S. Sup.).

  • November 11, 2019

    Magistrate Judge Finds Numerous Issues With Call Center Workers’ Wage Settlement

    SAN DIEGO — A federal magistrate judge in California on Nov. 7 denied preliminary approval of a nearly $1.5 million wage settlement between an operator of medical centers and its call center employees. finding multiple issues with the settlement terms (Monica Smith, et al. v. Kaiser Foundation Hospitals, No. 18-780, S.D. Calif., 2019 U.S. Dist. LEXIS 194964).

  • November 07, 2019

    Georgia Panel Vacates, Reverses Rulings In Nursing Home Wrongful Death Action

    ATLANTA — A trial court erred in dismissing as improper parties two nursing home companies from a negligence, premises liability and wrongful death suit without allowing the administrator of the decedent’s estate to conduct discovery because its ruling constituted an award of summary judgment to the companies, a Georgia appellate panel held Nov. 4, reversing in part and vacating in part (Donna Andrews v. Blue Ridge NH Associates, LLC, et al., No. A19A1916, Ga. App., 1st Div., 2019 Ga. App. LEXIS 667).

  • November 07, 2019

    5th Circuit Affirms Dismissal Of Wrongful Death Suit Against Assisted Living Facility

    NEW ORLEANS — A Fifth Circuit U.S. Court of Appeals panel on Nov. 4 affirmed the dismissal with prejudice of a wrongful death suit against an assisted living facility, finding that the decedent’s family’s second amended complaint was “insufficient to support a plausible inference” that the facility’s administration of an antipsychotic drug was the likely cause of the woman’s fatal pneumonia (Mack Peterson, et al. v. Silverado Senior Living, Incorporated, No. 19-20072, 5th Cir., 2019 U.S. App. LEXIS 33082).

  • November 07, 2019

    11th Circuit Finds Secretary’s Comparators In Bias Suit Were Insufficient

    ATLANTA — A school secretary whose job required her to be at her desk during her entire shift couldn’t point to other workers without that requirement as comparators, an 11th Circuit U.S. Court of Appeals panel ruled Nov. 5, affirming a summary judgment ruling for the employer on race and age bias claims (Anita Smith v. Vestavia Hills Board of Education, No. 18-11626, 11th Cir., 2019 U.S. App. LEXIS 32997).

  • November 06, 2019

    Class:  Reverse Mortgage Lender Conducts Excessive Inspections, Improperly Places Insurance

    LOS ANGELES — Reverse mortgage lender American Advisors Group (AAG) “is scamming the nation’s senior citizens and their heirs out of millions of dollars” by conducting and charging for numerous property inspections and force-placing property insurance on properties that are insured, the co-executors of a woman’s estate claim in a putative class action filed Nov. 4 in California federal court (Nancy Palombi, et al. v. American Advisors Group, et al., No.19-cv-2120, C.D. Calif.).

  • November 05, 2019

    Split Ark. High Court Partially Reverses Arbitration Denial In Nursing Care Class Suit

    LITTLE ROCK, Ark. — A split Arkansas Supreme Court on Oct. 31 partially reversed a trial court’s refusal to enforce arbitration agreements in a class complaint over care against a nursing home operator, finding that those agreements signed by competent residents or parties with legal authority to sign on their behalf that didn’t contain a $30,00 threshold could be enforced (Robinson Nursing and Rehabilitation Center, LLC, et al. v. Andrew Phillips, et al., No. CV-18-45, Ark. Sup., 2019 Ark. LEXIS 309).

  • November 04, 2019

    South Carolina High Court Rejects Challenge To Grandparent Visitation Law

    COLUMBIA, S.C. — The South Carolina Supreme Court on Oct. 30 rejected a mother’s claim that a subsection of the South Carolina Code governing grandparent visitation is unconstitutional, affirming a lower court’s ruling in favor of the mother’s former in-laws; however, the court remanded the case for the lower court to modify the visitation schedule to accommodate restrictions sought by the mother (Laverne Bazen, et al. v. Tammie Bazen, No. 27925, S.C. Sup., 2019 S.C. LEXIS 105).

  • November 04, 2019

    Rejection Of Fired Worker’s Age Discrimination, ERISA Claims Affirmed By Panel

    CINCINNATI — In an Oct. 31 holding, the Sixth Circuit U.S. Court of Appeals agreed with a Tennessee federal judge’s determination that a plaintiff fired for violating his former company’s “core values” failed to prove that the stated rationale for the termination was mere pretext for discrimination (James Williams v. Graphic Packaging International Inc., No. 18-5485, 6th Cir., 2019 U.S. App. LEXIS 32572).

  • November 04, 2019

    U.S. Supreme Court Denies Real Estate Company’s Age Bias Petition

    WASHINGTON, D.C. — The U.S. Supreme Court on Nov. 4 denied a petition for a writ of certiorari filed by an employer, Cushman & Wakefield Inc. (C&W), asking the U.S. Supreme Court to decide if federal courts sitting in diversity should certify questions to state supreme courts where state courts “are silent or split on outcome-determinative questions that implicate subject-matter jurisdiction, core legal requirements” or both (Cushman & Wakefield, Inc. v. Yury Rinsky, No. 19-306, U.S. Sup.).

  • October 31, 2019

    Federal Judge Establishes Scope Of Class In EEOC Age-Based Pension Suit

    BALTIMORE — The Equal Employment Opportunity Commission may pursue claims in an age-based pension rate dispute on behalf of a class of workers without their consent to the lawsuit as is required under Fair Labor Standards Act (FLSA) collective lawsuits and may seek back pay for a 10-year period with the ability to pursue discovery regarding an alternative cut-off date that would add nearly three more years, a Maryland federal judge ruled Oct. 28 (Equal Employment Opportunity Commission v. Baltimore County, et al., No. 07-2500, D. Md., 2019 U.S. Dist. LEXIS 185913).

  • October 30, 2019

    Alabama High Court Finds Anti-Lapse Statute Governs Estate Dispute

    MONTGOMERY, Ala. — A decedent’s nieces are entitled to their mother’s share of the decedent’s estate under Alabama’s “anti-lapse statute” even though the decedent had expressly disinherited all her other relatives because the decedent could have foreseen that the nieces would inherit her sister’s share if the sister predeceased her and failed to provide for that contingency, an Alabama Supreme Court panel ruled Oct. 18, reversing and remanding (Regina C. Norwood, et al. v. Elise Barclay, No. 1180281, Ala. Sup., 2019 Ala. LEXIS 111).

  • October 29, 2019

    Widow’s Challenge To Social Security Benefit Reduction Dismissed By Judge

    INDIANAPOLIS — A federal judge in Indiana on Oct. 24 dismissed with prejudice a woman’s challenge to a final Social Security Administration (SSA) determination that she had been overpaid widow’s benefits because such benefits must be reduced by pension and other Social Security payments a widow receives based on her own work; the judge dismissed the complaint pursuant to res judicata but also found that there was no legal basis to reverse an administrative law judge’s decision (Clara P. v. Andrew M. Saul, No. 18-cv-04029, S.D. Ind., Indianapolis Div., 2019 U.S. Dist. LEXIS 184602).